Libel-Proof Poster Child: Lenny Dykstra Strikes Out in Suit Against Former Mets Teammate and Book Publishers
The most elusive of legal creatures, a "libel-proof" plaintiff, has been found in New York City. And it's Lenny Dykstra— the bad boy of baseball.
Former New York Mets slugger Dykstra—whose misdeeds on and off the field are legendary—brought suit against his former Mets teammate, pitcher Ron Darling, as well as Darling's co-author Daniel Paisner and book publisher St. Martin's Press (an imprint of Macmillan Publishing Group LLC) over a 2019 sports memoir in which Darling recounted that Dykstra hurled "racist" insults at the opposing Red Sox pitcher during Game 3 of the 1986 World Series. While Dykstra claimed that labeling him a racist in the book indelibly stained his reputation, New York County Supreme Court Justice Robert Kalish begged to differ.
By a decision dated May 29, 2020, Justice Kalish granted the defendants' pre-answer motions to dismiss, finding that Dykstra's well-documented reputation for racist, misogynistic, homophobic, and criminal behavior rendered the case "one of those rare circumstances" where dismissal was warranted under the libel-proof plaintiff doctrine. In granting dismissal, Justice Kalish further held that Dykstra, an admitted public figure, failed to plausibly plead facts evidencing actual malice by publishers St. Martin's Press and Macmillan—thereby joining a growing number of New York state court decisions that have rendered "no actual malice" rulings at the pleading stage. Dykstra v. St Martin's Press LLC, et al., Index No. 15376/2019 (Sup. Ct. N.Y. Cty.).
Pregame Warmup
Dykstra filed his libel suit last April shortly after publication of the book "108 Stitches: Loose Threads, Ripping Yarns, and the Darndest Characters from My Time in the Game," Darling's latest retrospective on his time playing professional baseball for the Mets. In the book, Darling recounts an incident from the beginning of Game 3 of the 1986 World Series in which the Boston Red Sox were leading the Mets two games to none and had home-field advantage at Boston's Fenway Park. Darling reveals that Dykstra, the Mets' leadoff batter, from his position in the on-deck circle taunted opposing pitcher Dennis "Oil Can" Boyd, who is Black, during Boyd's pre-game warmup pitches on the mound. Darling writes that Dykstra "[was] shouting every imaginable and unimaginable insult and expletive in [Boyd's] direction – foul, racist, hateful, hurtful stuff."
According to Darling, Boyd "looked rattled," and Dykstra's pitcher-baiting "might have had the desired effect" because "Lenny smoked a 1-1 pitch deep down the right-field line for a home run, igniting a four-run rally" that put the Mets, who went on to win Game 3, back in the series. Darling states in his book that "[i]t's amazing to me, looking back, that there's no footage from the game revealing Lenny's treachery" even though Dykstra was shouting expletives "in range of the cameras and microphones set up to record the game, but I guess the attention was elsewhere." And while Dykstra—who Darling describes as "one of baseball's all-time thugs"—became the hero of Game 3, Darling expresses remorse in the book that "as a result of [Dykstra's] ugly treatment of the opposing pitcher, I was an accomplice of a kind."
Dykstra immediately took to social media to blast Darling's account as false. While not quite denying he had verbally insulted Boyd, Dykstra took issue with Darling's description of the epithets as "racist" and as "worse, I'm betting, than anything Jackie Robinson might have heard." And some of Dykstra's former Mets teammates, including Daryl Strawberry, and Boyd himself came to Dykstra's defense, commenting to the press that they did not recall Dykstra hurling racist epithets at Boyd.
Dykstra filed a libel suit soon after, admitting that he is a public figure but alleging that Darling acted with actual malice because he fabricated his story and that St. Martin's Press and Macmillan (the "Publisher Defendants") acted with actual malice because they failed to investigate whether Darling's story was accurate. In an amended complaint drafted by new counsel, Dykstra tried to bolster his actual-malice claim with new allegations that (1) Darling conspired with his co-author Paisner to defame Dykstra to sell books and further some unspecified vendetta against Dykstra, and (2) the Publisher Defendants knew Darling's account of Dykstra's racist tirade was false because they had published another of Darling's works that purportedly contradicted his current recounting of events.
Specifically, Dykstra alleged that an earlier book published by St. Martin's Press, titled "Game 7, 1986," in which Darling likewise described Dykstra hurling "unprintable" and "unsuitable" insults at Boyd, was nonetheless inconsistent with Darling's current version of events because Darling failed to state in his earlier memoir that Dykstra's insults were "racist." And in subsequent motion papers, Dykstra proffered yet a new theory of actual malice by the Publisher Defendants: Relying on Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657 (1989), Dykstra argued that since Darling acknowledged in the book that the TV broadcast of Game 3 did not show Dykstra yelling racist expletives at Boyd, the Publisher Defendants were on pre-publication notice of falsity and engaged in "purposeful avoidance" of the truth by not investigating further.
Out at First Base: "No Actual Malice" Ruling at the Pleading Stage
In granting the defendants' motions to dismiss, Justice Kalish first considered whether Dykstra had pled sufficient factual allegations that the Publisher Defendants published the challenged statements with actual malice and concluded he had not. As a threshold matter, the court reaffirmed the bedrock First Amendment principle that alleged "[f]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is insufficient to establish reckless disregard" for the truth.
Justice Kalish also roundly rejected Dykstra's contention that merely because Darling acknowledged in his book manuscript that "there's no [broadcast] footage from the game revealing Lenny's treachery," the Publisher Defendants were thereby put on prepublication notice that Darling's account was false. "[T]he mere fact...there is no video footage documenting [Dykstra's] alleged 'treachery,'" Justice Kalish observed, does not evidence knowledge of falsity by the Publisher Defendants since, as Darling explains to readers in the book, "the attention of the cameras and the crowd might have been elsewhere." Moreover, Justice Kalish agreed with the Publisher Defendants that "even if Dykstra's 'treachery' was captured by some cameras, FCC regulations and societal taboos explain why it was not part of the broadcast."
Given all this, Justice Kalish found Dykstra's reliance on the "purposeful avoidance" doctrine of Harte-Hanks to be "misguided" since, in stark contrast to the facts of Harte-Hanks (where the newspaper defendant received pre-publication denials not only from the plaintiff but also from five other witnesses, yet nonetheless decided not to interview a key sixth witness), nowhere in Dykstra's amended complaint "is there any allegation that, prior to publication of the book, Publisher Defendants were aware of anyone denying" Darling's account of Dykstra's racist taunts during Game 3. Importantly, Justice Kalish's ruling adds to the body of lower-court decisions that, in narrowly cabining Harte-Hanks to its facts, have consistently stressed that the purposeful avoidance doctrine only applies in truly exceptional cases, like Harte-Hanks, where the defendant has a high degree of awareness of probable falsity before publication and then engages in deliberate conduct to avoid having its awareness of probable falsity confirmed.
Justice Kalish also found Darling's prior memoir "Game 7," where Darling described Dykstra flinging "unprintable" insults, "unsuitable comments," and "hateful, hurtful declaration[s]" at Boyd, to be entirely consistent with Darling's current book. He noted for good measure that because Dykstra's never challenged Darling's previous account in "Game 7," that "was all the more reason for Publisher Defendants to have accepted what Darling wrote in the book." Last, joining a growing number of New York state court decisions that have made "no actual malice" rulings at the pleading stage, Justice Kalish concluded that "Dykstra's vague and conclusory allegations as to Darling's desire to take revenge 'rests only on surmise and conjecture, not evidentiary facts.'"
Grand Slam: Dykstra Declared Libel-Proof
Next, Judge Kalish turned to the defendants' argument that Dykstra is a libel-proof plaintiff. Noting that this doctrine is only sparingly applied, the court found that Dykstra's case was indeed one of those rare circumstances.
The libel-proof plaintiff doctrine bars relief, as a matter of law, to a libel plaintiff whose "reputation on a subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986). New York state courts have adopted and applied the libel-proof plaintiff doctrine in prior cases, and, as the court in Dykstra noted, "[w]hether a plaintiff is libel-proof is a question of law for the Court to decide."
In ruling at the pleading stage that Dykstra is libel-proof, Justice Kalish relied heavily on the defendants' extensive documentary submissions evidencing Dykstra's abysmal reputation, including news articles, excerpts from books, criminal convictions, and prior court proceedings against Dykstra. In so doing, Justice Kalish followed Greenberg v. Spitzer, 155 A.D.3d 27, 45 (2d Dep't 2017), where the Second Department held that "in defamation actions, courts may consider the documentary evidence for their context, rather than for their truth." In the context of the defendants' libel-proof plaintiff argument, Justice Kalish accordingly concluded that he could appropriately consider previous news reports of Dykstra's behavior for the purpose of establishing his reputation, without actually determining whether those news reports are true.
Based on the documentary record, Justice Kalish—without mincing words—found that "prior to publication of the book, Dykstra was infamous for being, among other things, racist, misogynist, and anti-gay, as well as a sex predator, a drug-abuser, a thief, and an embezzler." Of particular significance, the court noted that several news articles and two books by former employees of Dykstra recounted numerous instances of Dykstra using racist epithets to describe Black athletes, as well as regularly insulting other minorities, women and members of the LGBTQ community and that Dykstra had failed to sue over any of those prior reports. The court also analyzed excerpts from Dykstra's own autobiography, "House of Nails," finding that Dykstra's braggadocio and admissions of steroid use and of blackmailing umpires for being gay demonstrated his reputation "of being willing to do anything to benefit himself and his team."
In light of this "aforesaid litany" of stories concerning Dykstra's "poor and mean-spirited behavior" toward racial minorities and others, Justice Kalish concluded that, as a matter of law, Darling's charge that Dykstra flung racist insults at "Oil Can" Boyd "cannot 'induce an evil opinion of [Dykstra] in the minds of right-thinking persons'..., as that 'evil opinion' has long existed." In throwing Dykstra out of his courtroom, the judge further noted that Dykstra's celebrity gives him ample opportunity to tell his own story to the public and bluntly stated:
this Court sees no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law. There are sports commentators, bloggers and legions of baseball fans to litigate this issue in the public space.
Postgame Show
Dykstra, who is active on Twitter and other social media, immediately tweeted that he planned to appeal, but he failed to do so by the July 2 deadline.
St. Martin's Press, Macmillan Publishing Group, LLC and Daniel Paisner were represented by Robert Balin and Kathleen Farley of Davis Wright Tremaine.
Robert Balin is a partner and Kathleen Farley an associate in Davis Wright Tremaine's New York office.